Punjab-Haryana High Court
Dy. Chief Controller Of Imports & ... vs Jasbir Singh Manchanda & Ors on 2 March, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Criminal Revision Petition No.534 of 2001 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRR No.534 of 2001
Date of Decision:-2 3.2012
Dy. Chief Controller of Imports & Exports, New Delhi ...Petitioner
Vs.
Jasbir Singh Manchanda & Ors. ...Respondents
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Ajay Kaushik, Advocate for the petitioner.
Mr.R.K.Battas, Advocate with
Mr.Sushant Batish, Advocate for respondent No.1.
Mr.R.P.S.Ahluwalia, Advocate for respondent Nos.2 to 4.
Mr.Sanjiv Bansal, Advocate for respondent No.5.
Mehinder Singh Sullar, J.
The matrix of the facts and material, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, is that originally, the petitioner-complainant Deputy Chief Controller of Imports & Exports, New Delhi (for brevity "the complainant") filed a criminal complaint (Annexure II) against Jasbir Singh Manchanda and others respondents-accused, on accusation of having committed the offences punishable under Sections 420, 468, 471 read with Section 120-B IPC and Section 5 of the Imports & Exports (Control) Act, 1947 and the rules framed thereunder (hereinafter to be referred as "the Act & the relevant rules"), inter-alia pleading that a fake firm styled as M/s Khanna & Company was floated by the accused as a proprietary concern of S.S.Khanna by showing the factory to be situated at GT Road, Kundli, District Sonepat. An import Criminal Revision Petition No.534 of 2001 -2- application dated 10.6.1980 was submitted to the Joint Chief Controller, Import and Export on behalf of the said firm under the signatures of S.S.Khanna as its sole proprietor, for import of iron & steel material, worth ` 9,97,520/-, under para 42 of the Current Import Policy AM-81. The firm was shown to have been registered with the department of Industries, by virtue of fake registration certificate, bearing No.05/08/07117/SSI dated 6.8.1977 and it was also shown that the firm has installed the machinery worth ` 2,57,000/- in its premises. The firm was further shown to have permanent account, bearing No.PY-23/25/18, with the Income Tax Officer and the residential address of S.S.Khanna was shown as 416, Model Town, Sonepat. The import licence was applied on the basis of past consumption, which was purported to have been certified by the co-accused on behalf of M/s N.C.Mittal & Company, Daryaganj, New Delhi & others and further certified by S.P.S. Chauhan, Assistant Director of Industries, Haryana. The accused were stated to have appended the fake invoices and documents of a non- existent firm with the application, in order to obtain the import/export licence. Accused Jasbir Singh Manchanda also hired one room of the shop of Karan Singh and informed the postal authorities to deliver the correspondence/letters of M/s Khanna & Company at Karan Singh's shop.
2. Levelling a variety of allegations and narrating the sequence of events in detail, contained in the complaint (Annexure II), in all, the complainant claimed that Jasbir Singh Manchanda accused-respondent No.1 has floated a fake firm styled as M/s Khanna & Company on paper, which never came into existence. He fabricated, obtained the false documents, used the same as genuine, cheated the Government, illegally, fraudulently and with mala fide intention, obtained the import/export licence with the connivance of his other co-accused. The goods imported under the licence after having been cleared from the custom/docks, Bombay, were neither brought to the notice of firm M/s Khanna and Company nor Criminal Revision Petition No.534 of 2001 -3- the same were utilized for the purpose, for which, these were imported. In this manner, all the accused hatched a criminal conspiracy and disposed of all the imported material brought on fake licence, in contravention of the provisions of the Act and relevant Rules. Inter-alia in the background of these allegations, the complainant filed the criminal complaint (Annexure II) against the respondents- accused, in the manner depicted hereinbefore.
3. Taking cognizance of the complaint and considering the evidence/material and documents, all the accused were ordered to be summoned to face the trial by the Special Judicial Magistrate, by way of order dated 4.7.1984.
4. Dissatisfied with the initiation of criminal proceedings, accused Jasbir Singh Manchanda filed Criminal Misc. Petition, bearing No.5625-M of 1985 for quashing the FIR, which formed the basis of complaint (Annexure II) and all other subsequent proceedings arising therefrom. The petition was disposed of with the direction to the trial Magistrate to re-consider the matter and liberty was granted to the accused to take all the pleas, which were taken in that petition, by a Coordinate Bench of this Court (R.L.Anand, J. as his Lordship then was), by means of order dated 3.10.1997 (Annexure III). Consequently, Jasbir Singh Manchanda accused moved an application (Annexure IV) for dismissing the complaint. The trial Magistrate accepted the application and dismissed the complaint, vide impugned order dated 24.1.2000 (Annexure V).
5. Aggrieved by it, the complainant (Union of India) and others filed Special Leave Petitions (Writ Criminal MP Nos.5484/5485 of 2000) challenging the order (Annexure III) of this Court and the order (Annexure V) of trial Magistrate, which came to be disposed of by the Hon'ble Supreme Court, by way of order dated 3.11.2000 (Annexure VI), which is to the following effect:-
"Delay condoned.
These Special Leave Petitions are actually filed against the order passed by the Special Judicial Magistrate, Ambala dated 24/01/2000. Petitioners should Criminal Revision Petition No.534 of 2001 -4- have moved the High Court against the said order. Instead of doing that they have come to this Court straight with this Special Leave Petition. The reason advanced for adopting this short cut is that the Special Judicial Magistrate passed the impugned order only on the strength of the earlier order passed by the High Court dated 3/10/1997 and in the light of the observations made by the High Court. Even then the course which the CBI should have adopted was to move the High Court against the order passed by the Special Judicial Magistrate, Ambala. We permit the petitioners to do so afresh and if any such motion is made the same shall be disposed of untrammeled by any observations made by the High Court in the order dated 3/10/1997.
With these observations, the Special Leave Petitions are disposed of."
6. Faced with the grave situation and in pursuance thereof, the complainant filed the present petition, challenging the impugned order (Annexure V), invoking the provisions of Sections 397 and 401 read with Section 482 Cr.PC and it was placed before me for hearing only on 2.1.2012. That is how, I am seized of the matter.
7. At the very outset, it will not be out of place to mention here that CRM No.2261 of 2007 filed by Jasbir Singh Manchanda accused-respondent No.1 for dismissal of the main revision petition, as time barred, was dismissed by this Court, vide detailed order dated 28.2.2012 and arguments in it (main revision petition) were heard.
8. Assailing the impugned order, the learned counsel for the petitioner- complainant contended with some amount of vehemence that the trial Court has illegally dismissed the criminal complaint on erroneous, non-existent grounds and just ignored the reliable evidence on the record at the preliminary stage. Thus, he prayed for acceptance of the revision petition.
9. On the contrary, hailing the impugned order, the learned counsel for respondents-accused urged that since the speedy trial is a fundamental right of the accused, so, the impugned order cannot be set aside at this belated stage. Therefore, they prayed for dismissal of the instant petition. Criminal Revision Petition No.534 of 2001 -5-
10. Having heard the learned counsel for the parties at quite some length, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the present revision petition deserves to be accepted in this context.
11. Ex facie, the argument of learned counsel for the respondents- accused that the impugned order cannot be set aside at this belated stage, is neither tenable nor the observations of Hon'ble Apex Court in cases Hussainara Khatoon and others (IV) v. Home Secretary, State of Bihar, Patna (1980) 1 S.C.C. 98; Pankaj Kumar v. State of Maharashtra & Ors. 2008(4) RCR (Criminal) 890 and Madras High Court in case A.Elumalai v. Administrator -Cum- Lt.Governor of Pondicherry and others AIR 2001 Madras 265, are at all applicable, wherein, it was held that "the right to speedy trial in all criminal prosecutions is a fundamental right of the accused guaranteed under Article 21 of the Constitution. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. The Court has to perform the balancing act upon taking into consideration all the attendant circumstances and determine in each case whether the right to speedy trial has been denied in a given case and the criminal prosecution has to be set aside unless the Court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial." Possibly, no one can dispute with regard to the aforesaid observations, but, to me, the same would not come to the rescue of the respondents-accused in the instant controversy.
12. As is evident from the record, that in the wake of complaint (Annexure II), the accused were summoned to face trial by the Magistrate, vide order dated 4.7.1984. Instead of submitting to the jurisdiction of the trial Criminal Revision Petition No.534 of 2001 -6- Magistrate, respondent No.1-accused, straightway jumped to file CRM No.5625-M of 1985 for quashing the FIR, which formed the basis of complaint (Annexure II) and all other subsequent proceedings arising therefrom. The petition was disposed of with the direction to the trial Magistrate to re-consider the matter and liberty was granted to the accused to take all the pleas, which were taken in that petition, by a Coordinate Bench of this Court (R.L.Anand, J. as his Lordship then was), by virtue of order dated 3.10.1997 (Annexure III). Consequently, Jasbir Singh Manchanda accused moved an application (Annexure IV) for dismissing the complaint. The trial Magistrate accepted the application and dismissed the complaint, vide impugned order dated 24.1.2000 (Annexure V). These orders were challenged by the complainant and Hon'ble Supreme Court relegated and directed the Union of India to file the present revision petition, through the medium of order (Annexure VI). Therefore, once it is proved that the accused-respondent No.1 has himself delayed the matter in the manner described hereinbefore, then, the petitioner-complainant cannot be blamed for it. In that eventuality, it cannot possibly be saith that the respondents-accused are entitled to the benefit of principle of speedy trial, as (contrary) urged on their behalf.
13. In case, this contention of learned counsel for the respondents- accused is accepted as such, then, every accused will make effort/endeavour to take unsustainable grounds/steps to delay the disposal of criminal cases at the first instance and thereafter claim acquittal on the basis of principle of speedy trial. In this manner, it will create chaos, inculcate and perpetuate the illegal tendency of delaying tactics in the criminal cases by the accused and there will be no end of anything, which, to my mind, is not legally permissible. Hence, the accused are estopped and debarred from claiming the acquittal on the ground of speedy trial, by virtue of their own acts and conducts. Having regard to the nature of offences and the relevant circumstances, as discussed hereinabove, to me, it will be Criminal Revision Petition No.534 of 2001 -7- appropriate to reject the submissions of speedy trial raised on behalf of the respondents-accused in this relevant connection.
14. There is another aspect of the matter, which can be viewed from altogether a different angle. As indicated hereinbefore, the trial Magistrate dismissed the complaint, vide impugned order dated 24.1.2000 (Annexure V), which, in substance, is (paras 16 to 18) as under:-
"16. It is significant to notice that complaint dated 17.6.81 of Mukhtiar Singh simply disclosed that an import licence had been obtained in the name of M/s Khana and Company, G.T.Road Kundli, Distt.Sonepat on the basis of an application signed by Sh.S.S.Khanna, resident of H.No.416 Model Town, Sonepat as sole proprietor of the firm and that inspection carried out by the officials of the department had found no unit with name of said firm in existence at the given address. It also disclosed that the Director of Industries Haryana had informed that no unit with the name of said firm was in existence and that signatures of Sh.S.P.S.Chauhan on the import application were forged. However, the complaint was silent on the point as to by whom and how the fraud was played for obtaining the licence. The complaint dated 17.6.81 thus proves that the complainant department had no evidence to connect the accused with the alleged fraud and forgery.
17. The case file further reveals that C.B.I. after holding some investigation had asked the complainant department to give a fresh complaint. Sh.Mukhtiar Singh had then sent another complaint dated 21.6.82 and C.B.I. on its basis had registered F.I.R.No.RC-61/E/82. During the course of investigation of said case, the C.B.I. had obtained specimen signatures of some persons including accused and got them compared from Government Hand Writing Expert. The CBI on the basis of material collected during investigation had ultimately concluded that accused persons had floated a bogus firm M/s. Khanna & Co. by showing it to be a proprietary concern of Sh.S.S.Khanna and accused Jasbir Singh by posing himself to be S.S.Khanna had forged signatures and obtained the import licence.
18. If the evidence collected by C.B.I. is ignored, there remains no cogent material to connect the accused with the alleged crime. There is Criminal Revision Petition No.534 of 2001 -8- thus no escape from the conclusion that the complaint filed by the Department rests solely on the findings given by C.B.I. who had investigated the matter. That being the position, this court has no option but to dismiss the complaint filed by the department in terms of the directions issued by Hon'ble High Court vide order dated 3.10.97 reproduced in the earlier part of the judgment."
15. As is clear from the impugned order that the main grounds, which appear to have been weighed with the trial Court to dismiss the complaint, were that there are no allegations of cheating & fraud and if the evidence collected by the CBI is ignored, there remains no cogent material to connect the accused with the alleged crime. Here, to me, the Magistrate has slipped into a deep legal error in this respect. The bare perusal of the record/complaint (Annexure II) would go to show that there are direct allegations of cheating, fraud, preparing and using the false documents as genuine by the respondents-accused, in order to fraudulently obtain the import/export licence, which are supported by the documents. Not only that, their learned counsel have miserably failed and did not point out any statutory provisions or legal bar to contend that no implicit reliance can be placed on the evidence collected by the CBI at the initial stage of summoning the accused as held by the trial Court in this regard.
16. Moreover, a conjoint and meaningful reading of Sections 200 to 204 Cr.PC would reveal that at the stage of summoning, all that Magistrate has to see, is whether or not there is "sufficient ground for proceeding" against the accused. The Magistrate is not to weigh the evidence so meticulously as he is required to do during the course of trial of main case. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This matter is no more res integra and is well settled.
17. An identical question came to be decided by the Hon'ble Apex Court Criminal Revision Petition No.534 of 2001 -9- in case Shivjee Singh v. Nagendra Tiwary & Ors. 2010(7) SCC 578, wherein the view taken in case Mohinder Singh v. Gulwant Singh 1992(2) RCR(Criminal) 134 was reiterated and ruled (paras 11 & 12) as under:-
"11. The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry." (emphasis supplied)
12. The use of the word `shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word `all' appearing in proviso to Section 202(2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused."
18. Above-all, there was sufficient evidence/documents on record to summon the respondents-accused to face the trial for the indicated offences, but, Criminal Revision Petition No.534 of 2001 -10- the same were just ignored with impunity by the trial Court. Thus, to my mind, the trial Magistrate did not examine the matter in the right perspective and has committed a grave illegality and material procedural irregularity. The impugned order (Annexure V) cannot legally be sustained and deserves to be set aside in the obtaining circumstances of the case.
19. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
20. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main complaint (Annexure II), the instant petition is accepted. Consequently, the impugned order (Annexure V) is hereby set aside. The matter is remitted back to the trial Magistrate for its fresh decision in the light of indicated observations and in accordance with law. Since it is an old case, so, the trial Court is directed to take every effective steps for its expeditious disposal. The parties through their counsel are directed to appear before the trial Court on 9.4.2012 for further proceedings.
21. Needless to mention that, nothing observed here-in-above, would reflect, in any manner, on the merits of the main complaint case, as the same has been so recorded for a limited purpose of deciding the present petition.
2.3.2012 (MEHINDER SINGH SULLAR)
AS JUDGE
Whether to be referred to reporter?Yes/No